Parnell v. Superior Court
| Court | California Court of Appeals |
| Writing for the Court | FRIEDMAN; JANES |
| Citation | 61 Cal.App.3d 430,132 Cal.Rptr. 535 |
| Decision Date | 20 August 1976 |
| Parties | Janis Kay PARNELL, Petitioner, v. SUPERIOR COURT IN AND FOR the COUNTY OF TRINITY, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 16230. |
Page 535
v.
SUPERIOR COURT IN AND FOR the COUNTY OF TRINITY, Respondent;
The PEOPLE of the State of California, Real Party in Interest.
Hearing Denied Oct. 28, 1976.
[61 Cal.App.3d 431] McCready & Doyle, San Francisco, for petitioner.
Evelle J. Younger, Atty. Gen., by Robert Marshall and Paul Bishop, Deputy Attys.
Page 536
Gen., Sacramento, for the People of the State of California.BY THE COURT:
Petitioner, under indictment for the murder of her husband, seeks a writ of prohibition restraining the trial judge, the Honorable Harold Underwood, from proceeding further in the action. This proceeding follows respondent superior court's denial, as untimely, of her motion under Code of Civil Procedure section 170.6 to disqualify the trial judge.
Subdivision (2) of section 170.6 requires, under the circumstances of this case, that the motion be made 'at least five days before' the date which has been fixed for trial.
Petitioner's motion was filed August 11, 1976; the date set for trial was August 16. The motion was timely. (People v. Escobedo (1973) 35 Cal.App.3d 32, 35--40, 110 Cal.Rptr. 550; and see Eagle Maintenance & Supply Co. v. Superior Court (1961) 196 Cal.App.2d 692, 695, 16 Cal.Rptr. 745.)
The final sentence of subdivision (2) of section 170.6 provides that '(t)he fact that a judge . . . has presided at or acted in connection with a . . . proceeding or motion prior to trial and not involving a determination of contested fact issues relating to the merits shall not preclude the later making of the motion provided for herein at the time . . . hereinbefore provided.' A hearing on a motion under Penal Code section 1538.5 for the suppression of evidence, even though involving a 'determination of [61 Cal.App.3d 432] contested fact issues,' does not constitute a proceeding which '(relates) to the merits' of a criminal action. Therefore, petitioner's motion to disqualify the trial judge was not barred by reason of his having previously heard and denied her motion for such relief. (Zdonek v. Superior Court (1974) 38 Cal.App.3d 849, 850--853, 113 Cal.Rptr. 669 (demurrer to complaints); Fraijo v. Superior Court (1973) 34 Cal.App.3d 222, 224--225, 109 Cal.Rptr. 909 (acceptance and later rejection of plea bargain); Kohn v. Superior Court (1966) 239 Cal.App.2d 428, 430--431, 48 Cal.Rptr. 832 (motion to...
To continue reading
Request your trial
-
Abdul Y., In re
...M. de la Guardia, Deputy Attys. Gen., for plaintiff and respondent. SPARKS, Associate Justice. In Parnell v. Superior Court (1976) 61 Cal.App.3d 430, 132 Cal.Rptr. 535, we held in a per curiam opinion that a hearing in a criminal case on a motion under Penal Code section 1538.5 for the supp......
-
People v. Wilks, Cr. N
...832.) We are aware of the recent per curiam opinion of the Third District of the Court of Appeal in Parnell v. Superior Court (1976) 61 Cal.App.3d 430, 132 Cal.Rptr. 535 (hg. den. in Supreme Court), which holds that a trial court's determination of a 1538.5 motion to suppress does not relat......
-
Brown v. Swickard
...was therefore timely. (Pamela H. v. Superior Court (1977) 68 Cal.App.3d 916, 919, 137 Cal.Rptr. 612; Parnell v. Superior Court (1976) 61 Cal.App.3d 430, 431, 132 Cal.Rptr. 535; and see People v. Escobedo (1973) 35 Cal.App.3d 32, 35-39, 110 Cal.Rptr. 550.) Accordingly, we conclude that the t......
-
People v. Montalvo, Cr. 38369
...Court (1977) 69 Cal.App.3d 407, 417, 138 Cal.Rptr. 43 (motion to transfer and motion for continuance); Parnell v. Superior Court (1976) 61 Cal.App.3d 430, 431, 132 Cal.Rptr. 535 (motion to suppress evidence pursuant to Pen.Code, § 1538.5); Kohn v. Superior Court, supra, 239 Cal.App.2d at p.......
-
Abdul Y., In re
...M. de la Guardia, Deputy Attys. Gen., for plaintiff and respondent. SPARKS, Associate Justice. In Parnell v. Superior Court (1976) 61 Cal.App.3d 430, 132 Cal.Rptr. 535, we held in a per curiam opinion that a hearing in a criminal case on a motion under Penal Code section 1538.5 for the supp......
-
People v. Wilks, Cr. N
...832.) We are aware of the recent per curiam opinion of the Third District of the Court of Appeal in Parnell v. Superior Court (1976) 61 Cal.App.3d 430, 132 Cal.Rptr. 535 (hg. den. in Supreme Court), which holds that a trial court's determination of a 1538.5 motion to suppress does not relat......
-
Brown v. Swickard
...was therefore timely. (Pamela H. v. Superior Court (1977) 68 Cal.App.3d 916, 919, 137 Cal.Rptr. 612; Parnell v. Superior Court (1976) 61 Cal.App.3d 430, 431, 132 Cal.Rptr. 535; and see People v. Escobedo (1973) 35 Cal.App.3d 32, 35-39, 110 Cal.Rptr. 550.) Accordingly, we conclude that the t......
-
People v. Montalvo, Cr. 38369
...Court (1977) 69 Cal.App.3d 407, 417, 138 Cal.Rptr. 43 (motion to transfer and motion for continuance); Parnell v. Superior Court (1976) 61 Cal.App.3d 430, 431, 132 Cal.Rptr. 535 (motion to suppress evidence pursuant to Pen.Code, § 1538.5); Kohn v. Superior Court, supra, 239 Cal.App.2d at p.......